State v. Giordano

Decision Date06 November 1991
Docket NumberNo. 89-342,89-342
Citation599 A.2d 109,134 N.H. 718
PartiesThe STATE of New Hampshire v. Vincent GIORDANO.
CourtNew Hampshire Supreme Court

John P. Arnold, Atty. Gen. (Tina L. Nadeau, attorney, on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, on brief and orally, for defendant.

HORTON, Justice.

The defendant, Vincent Giordano, was convicted by a jury in Superior Court (Mangones, J.) of three burglary charges, RSA 635:1, I, and acquitted on a fourth. On appeal, the defendant argues that the trial court erred in sentencing him without benefit of a presentence report, as required by RSA 651:4, I, and in denying his motion to sever the fourth burglary charge from the remaining three. For the reasons that follow, we affirm.

At 1:44 a.m. on December 22, 1987, while responding to a silent alarm from a professional building, Derry police officers saw the defendant crawl out of one of the building's windows. A search of the defendant conducted later at the police station incident to his arrest revealed $500, which was hidden inside the lining of his jacket sleeve, two keys to a typewriter case, several one-dollar bills, which were stained with dye, and two sales receipts from Ames department store, which reflected the purchase of a crowbar, carpet tape, rope, and a man's wool hat.

A search of the building disclosed that several alarms had been torn from the walls and that holes had been cut in three of the doctors' office doors. A circular saw covered with sawdust was found at the bottom of a staircase. Next to the saw was a flashlight, which the defendant later identified as his own. The police also found a seed bag from Heimlich's Nursery, containing an empty money bag, a garden tool, and two screwdrivers. At the top of the stairs, the officers found a crowbar with an Ames department store sticker on it, with inventory numbers matching those on one of the receipts found in the defendant's pocket, a wool hat with sawdust particles on it, and a typewriter in a typewriter case.

The next day, while still in jail, the defendant requested that the police retrieve some items which he had left behind Shaw's Supermarket, which is approximately one hundred yards from the burglarized offices and fifty to seventy-five feet from Heimlich's Nursery. Contrary to his claim that these items were recently purchased Christmas gifts, the items recovered by the police included a coffee pot identified as belonging to the nursery, more money bags, and an unopened package of nylon rope. The officers also observed that a nearby fence surrounding the nursery had been peeled back, and that a set of footprints led from the fence to an open window of the nursery. While retrieving the defendant's "belongings" from behind Shaw's, the police were dispatched to respond to a reported burglary at the nursery. Among the items reported missing were a seed bag and marked money.

Charged with burglarizing three doctor's offices and the nursery, the defendant represented himself during much of the trial, and told a different story as to how he came to be in the professional building. According to his testimony, he left work on December 21, picked up some money and Christmas gifts, and travelled to Manchester. Because of abdominal pain and rectal bleeding, he sought medical attention. He interrupted his cab ride to his doctor's office in Derry only in order to purchase a six-pack of beer. He then called the doctor's office located near the burglarized building, but was told that another doctor had taken over the practice. According to the defendant, after examining him the new doctor instructed him to go immediately to a hospital, but because he was unable to get a ride or a cab, he went shopping at the nearby shopping center. There he purchased and consumed more beer and vodka, hid his shopping packages, and fell asleep.

Upon waking, he discovered a bag containing the dyed money, a pair of boots, the coffee pot, the keys, and the money bags. He collected these items, put on the boots in place of his wet sneakers, and left the plaza. Walking by the professional building, he noticed that the window was open and, being cold and tired, climbed inside. Once inside, he discovered that holes had been cut in the doctors' office doors, and he entered one of the offices, hoping to find medication for his pain. An alarm sounded when he opened the door, causing him to suffer a seizure. When he saw the police, he started to go down to meet them, but slipped and fell down the stairway. He then crawled out the window and was arrested.

The jury, apparently disbelieving his version of the events, convicted him of two of the three burglary charges resulting from the break-ins at the doctors' offices, and of the charge of burglary of Heimlich's Nursery. This appeal followed.

The defendant argues that the trial court erred when it sentenced him without first obtaining a complete presentence report, which he had requested by motion and which was also required by RSA 651:4. The State contends that this issue was not properly preserved for appellate review and that, even if it were, the extensive written materials available to the sentencing judge "substantially complied" with the requirements of RSA 651:4.

It is well settled in this State that a contemporaneous and specific objection is required to preserve an issue for appellate review. State v. Menard, 133 N.H. 708, 710, 584 A.2d 752, 754 (1990); State v. Wisowaty, 133 N.H. 604, 607, 580 A.2d 1079, 1080-81 (1990). Although the defendant filed a motion requesting the preparation of a presentence report, which the court granted, neither the defendant acting pro se nor his counsel, who represented the defendant for certain portions of the sentencing hearing, ever objected to proceeding to sentencing without a presentence report. This court has previously held that "[t]he time to object to any perceived irregularities in the sentencing procedure [is] at the sentencing hearing." Roy v. Perrin, 122 N.H. 88, 100, 441 A.2d 1151, 1159 (1982). In the circumstances of this case, however, we determine that no further action on the defendant's part was necessary to "afford[ ] the trial court an opportunity to correct an error it may have made." State v. Nadeau, 126 N.H. 120, 125, 489 A.2d 623, 626 (1985). Consequently, we hold that this issue has been properly preserved.

RSA 651:4, I, states in part: "No person convicted of a felony shall be sentenced before a written report of a presentence investigation has been presented to and considered by the court, unless waived by defen...

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4 cases
  • State v. Nutter
    • United States
    • New Hampshire Supreme Court
    • 11 Diciembre 1991
    ... ... 358, 372, 530 A.2d 775, 783 (1987) (timeliness of a probation report), this has not always been a strict requirement. See, e.g., State v. Giordano, ... 134 N.H. ----, ----, 599 A.2d 109, ---- (1991) (no objection required to appeal the filing of and format of presentence report). Moreover, ... ...
  • State v. Bergmann, 90-162
    • United States
    • New Hampshire Supreme Court
    • 6 Diciembre 1991
    ...a trial court's consolidation ruling on appeal unless the defendant is able to demonstrate an abuse of discretion. State v. Giordano, 134 N.H. 718, ---, 599 A.2d 109 (decided November 6, 1991) (citing State v. Fecteau, 133 N.H. 860, 869, 587 A.2d 591, 596 (1991)). In making this determinati......
  • State v. Brinkman
    • United States
    • New Hampshire Supreme Court
    • 11 Marzo 1993
    ...is that "a contemporaneous and specific objection is required to preserve an issue for appellate review." State v. Giordano, 134 N.H. 718, 720, 599 A.2d 109, 111 (1991). The objection must state "explicitly the specific ground of objection." N.H.R.Ev. 103(b)(1); see State v. Wisowaty, 133 N......
  • State v. VanDerHeyden, 91-426
    • United States
    • New Hampshire Supreme Court
    • 30 Octubre 1992
    ..."a contemporaneous and specific objection is required to preserve an issue for appellate review" in this court. State v. Giordano, 134 N.H. 718, 720, 599 A.2d 109, 111 (1991); N.H.R.Ev. 103(b)(1). If an issue is not properly preserved, the objection is "deemed waived because the trial court......

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